In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00026-CV
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IN THE INTEREST OF Z.C.R.M.
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On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. C-234,693
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MEMORANDUM OPINION
In this appeal from an order in a suit affecting the parent-child
relationship, Z.C.R.M.’s father, Mark, complains the trial court abused
its discretion by restricting Mark’s possessory rights “more severely than
necessary to protect the child’s best interest.” In a second issue, Mark
argues the trial court erred by restricting his “possession and access to
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the child by reasons that are not supported by sufficient evidence on the
record.” 1 Finding no error, we will affirm.
Background
In March 2019, a then ten-month-old Z.C.R.M., Zeke, was
hospitalized and treated for a broken jaw that he suffered while in his
mother’s care. In April, the Department of Family and Protective
Services filed a “Petition for Protection of a Child, For Conservatorship,
and for Termination in Suit Affecting the Parent-Child Relationship,”
alleging Zeke faced “an immediate danger to [his] physical health or
safety,” or had “been the victim . . . of neglect or . . . abuse.” In paragraph
thirteen of the form petition, the Department asked the trial court to
name the Department as Zeke’s permanent managing conservator if Zeke
could not be reunified with one of his parents, or if he could not be
permanently placed with a relative or some other suitable person.
The same day the Department filed its petition, the trial court
signed an order authorizing the Department to take Zeke into its custody.
In the order, the trial court named the Department as Zeke’s temporary
1To protect the identity of the minor, we use pseudonyms to refer to
the minor, to members of his family, and to the foster parents. See Tex.
R. App. P. 9.8(b)(2).
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managing conservator. The affidavit supporting the removal, signed by a
caseworker employed by the Department, reflects the hospital where
Zeke was examined determined that Zeke had a fractured jaw, suffered
fractures to two of his ribs, which had already healed, and had fractures
that were healing in both of his shins. During the hearing on the
emergency petition, the Department’s attorney told the trial court the
Department had no reason to suspect that Mark had any involvement in
causing the injuries Zeke suffered that the caseworker listed in the
affidavit the Department filed to support its emergency petition seeking
temporary custody of Zeke.
Later that month, the trial court conducted a full adversary
hearing. During the hearing, Zeke’s father, Mark, testified he had only
seen Zeke once, just after Christmas in 2018. 2 Following the hearing, the
trial court signed an order requiring Zeke’s mother and Mark to follow
family service plans. 3 The following week, Mark agreed to the
2In the trial, however, we note that Mark testified he had seen Zeke
three times before the Department removed him from his mother’s home.
3See Tex. Fam. Code Ann. § 263.106 (Court Implementation of
Service Plan). The order reflects the trial court indicated it would
consider placing Zeke with Mark in his home following the results of an
inspection by the Department of Mark’s home.
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Department’s proposal that he have supervised visitation with Zeke,
rules which gave him the right to see Zeke one hour a week at a
Department office under the supervision of a member of the
Department’s staff.
After signing the agreement, Mark began working on the various
requirements of his family service plan. In March 2020, Governor Abbott
declared a state of disaster due to the imminent threat of the Covid-19
pandemic, which delayed the trial court’s ability to dispose of the case
within one year of the date the Department filed suit. And in March 2020,
Zeke’s foster parents, Tina and Ray, filed a Petition in Intervention,
alleging Mark’s parent-child relationship with Zeke should be terminated
on four grounds: (1) he left the child alone without support; (2) conduct
endangerment; (3) condition endangerment; (4) failed to support Zeke
after contumaciously refusing to submit to a reasonable and lawful order
of a court under Subchapter D, Chapter 261. 4
In November 2021—on the morning the case was to be heard by the
jury—Mark testified and asked the court to enter the settlement
agreement he reached with all parties naming him as Zeke’s possessory
4See Tex. Fam. Code Ann. § 161.001(b)(1)(C), (D),(E), and (I).
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conservator, explaining that he understood that by going forward with
the trial the jury might decide to terminate his parental rights to Zeke.
Mark also acknowledged during the settlement hearing that he
understood he remained obligated to support Zeke as Zeke’s possessory
conservator. For their part, Tina and Ray testified they agreed to the
settlement’s terms, which named them as Zeke’s permanent managing
conservators with Mark as Zeke’s possessory conservator. All parties
acknowledged they understood the trial court would conduct a bench trial
to resolve the remaining issues that were left on questions about Mark’s
visitation. After the parties announced the agreement, the witnesses
explained they understood and agreed to the settlement’s terms, the trial
court announced the court would approve the agreement, appointed Tina
and Ray as Zeke’s sole managing conservators, and appointed Mark as
Zeke’s possessory conservator.
After the trial court dismissed the jury, the trial court conducted an
evidentiary hearing to resolve the remaining issues, which concerned the
conditions (if any) under which the trial court would require Mark to
exercise his possessory rights. The issues the parties tried to the court
focused on whether Mark should have unsupervised visitation with Zeke.
5
Four witnesses testified in the hearing and expressed the opinion
that Mark’s visits should remain supervised, explaining that Zeke and
Mark did not yet have a bond. These witnesses were (1) the Child
Protective Services Supervisor in charge of Zeke’s case, (2) the licensed
professional counselor who observed Zeke and Mark during ten of their
supervised visits, (3) Tina, and (4) Ray. Mark was the only witness who
testified that he and Zeke have a bond. When Mark’s attorney asked
Mark “[d]o you feel like you have a bond with your child[,] Mark
responded: “Yes, I do.”
Two months after the hearing, the trial court signed a final order,
which addresses Mark’s rights. In the final order, the trial court
terminated mother’s parent-child relationship with Zeke, named Tina
and Ray as Zeke’s sole managing conservators, and appointed Mark as
Zeke’s possessory conservator. In the brief that Mark filed to support his
appeal, he argues in two issues that the trial court abused its discretion
in ordering supervised visitation. The trial court, when explaining why it
decided to require supervised visitation, stated in its order that
. . . credible evidence has been presented that the
psychological situation, cognitive weakness, lack of parenting
ability, lack of relationship with the child, and lack of
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adequate bond between [Mark] and the child necessitates that
his periods of possession be restricted. 5
After the trial court signed the order, Mark asked the trial court to
provide the parties with written findings. When the trial court did so, the
trial court noted that the licensed professional counselor who testified in
the trial observed Mark and Zeke during their sessions and expressed
her opinion that they lacked a bond. The licensed professional counselor
also observed that Mark had “been absent from Zeke’s life” before the
Department took Zeke into custody. Based on the testimony of the
witnesses and evidence presented to the court in the proceedings, the
trial court found that Mark “failed to bond with the child during the
pendency of the case.”
On appeal, Mark argues the supervised possession order is more
restrictive than necessary to protect Zeke’s best interest and the
restrictions on his rights of possession and access to Zeke lack sufficient
support in the record.
5Under the order, Mark may see Zeke in supervised visits every
other Sunday and every other Thursday for two hours, and on additional
days at times “mutually agreed to in advance by the parties.”
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Standard of Review
“In family law cases, the traditional sufficiency standard of review
overlaps with the abuse of discretion standard; thus, legal and factual
sufficiency are not independent grounds of error but are relevant factors
in assessing whether the trial court had sufficient evidence to exercise its
discretion.” 6 And since trial courts have wide latitude in deciding issues
that serves the child’s best interest when it involves matters like custody,
control, possession, and visitation, the decision the trial court made is
reviewed on appeal for abuse of discretion. 7 A trial court abuses its
discretion when it acts arbitrarily or without reference to any guiding
rules or principles. 8
In reviewing the trial court’s ruling, we note the Legislature placed
the focus on the child’s best interest in resolving suits filed by parties
that affect the parent-child relationship. 9 In evaluating the trial court’s
6Inre E.R.A., No. 09-20-00042-CV, 2021 Tex. App. LEXIS 2026, at
*11 (Tex. App.—Beaumont Mar. 18, 2021, no pet.) (mem. op.).
7See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In the Interest of
T.G., No. 09-16-00250-CV, 2016 Tex. App. LEXIS 12996, at *13 (Tex.
App.—Beaumont Dec. 8, 2016, no pet.) (mem. op.).
8Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985); In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11.
9Tex. Fam. Code Ann. § 153.002.
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best-interest finding, we look to the non-exclusive list of factors the Texas
Supreme Court identified in Holley v. Adams. 10 We also note the terms
of an order restricting a parent’s right to possession or access “may not
exceed those that are required to protect the best interest of the child.”11
Analysis
The question we must decide to resolve Mark’s issues is whether
the trial court abused its discretion by finding it was in Zeke’s best
interest for his visits to be supervised given that the trial court made its
decision when Zeke was not yet three-years-old when the order was
signed.
10In Holley, the Texas Supreme Court used the following non-
exclusive factors to review a court’s best-interest finding:
• the child’s desires;
• the child’s emotional and physical needs, now and in the future;
• the emotional and physical danger to the child, now and in the
future;
• the parenting abilities of the parties seeking custody;
• the programs available to assist the party seeking custody;
• the plans for the child by the parties seeking custody;
• the stability of the home or the proposed placement;
• the parent’s acts or omissions that reveal the existing parent-
child relationship is improper; and
• any excuse for the parent’s acts or omission.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
11Tex. Fam. Code. Ann. § 153.193.
9
During the hearing, the trial court heard testimony from several
witnesses who said that Zeke had been abused by a man when Zeke lived
with Zeke’s mother. The CPS supervisor assigned to Zeke’s case testified
in the hearing that she noticed Zeke cried when Mark saw Zeke when
Mark he was carrying out the requirements of his court-ordered family
service plan. Zeke was apparently uncomfortable with others, including
Mark, because according to the CPS supervisor Zeke “didn’t feel
comfortable with . . . people that he didn’t have a relationship with. [Zeke]
just had security issues and didn’t feel comfortable with various people,
which included CPS at that time.” According to the CPS supervisor, there
was not a bond established between Mark and Zeke, and she thought it
best that Mark’s visits be supervised until Zeke becomes comfortable
with Mark.
Tina and Ray testified they began taking care of Zeke when he was
ten-months old. They explained that he still had signs of injury from
being abused when he was placed in their home. Tina testified: “I just
don’t understand why [Zeke] has not bonded with [Mark], and it could be.
I just don’t understand there’s no bond. We have—he bonds with
caseworkers. He bonded with his lawyer. It’s just no bonding.” Tina
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testified she and Ray worked with CPS so that Zeke could bond with
Mark; however, she described Mark’s response to her efforts as
“lackadaisical” explaining that Mark did not seem excited about spending
more time with Zeke. And when Mark came for an additional visit on one
occasion on Zeke’s first birthday, she noticed that Mark failed to focus on
Zeke when he was there. According to Tina, when Zeke did visit with
Mark, Zeke had bad dreams at night when Mark left, and on occasion
Zeke became angry when he was in school and fought with other children.
Mark, however, testified that he did have a bond with Zeke. Yet
Mark agreed that Zeke also had bonded with Tina and Ray in a healthy
way. Mark also expressed gratitude for the fact that Tina and Ray had
been willing to parent his child.
The record contains conflicting evidence on the question of whether
Mark’s visits with Zeke should be supervised. Under Texas law, the trial
court was obligated to “render an order appropriate under the
circumstances for possession of a child less than three years of age” given
Zeke’s age when the hearing occurred. 12 And as the court of continuing
12SeeTex. Fam. Code Ann. § 153.253 (Standard Possession Order
Inappropriate or Unworkable).
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exclusive jurisdiction, the trial court could modify the order on a future
date, which Mark acknowledged in the settlement hearing before
approving the settlement Mark made on the issue of possession (but not
access). 13
The five witnesses who testified in the hearing addressed many of
the factors described in Holley, focusing on Zeke’s emotional needs, the
parenting abilities of Tina, Ray, and Mark, the stability of Zeke’s
placement, the role Mark played in the failure to bond, and the excuse
Mark offered to explain any alleged deficiencies in his bond with Zeke.14
The trial court’s conclusion requiring Mark’s visits with Zeke to be
supervised is reasonable given Zeke’s age, his past history, and the
evidence addressing the remaining Holley factors the evidence addressed
during the hearing. 15
13See Tex. Fam. Code Ann. § 161.001. During the settlement
hearing, Mark’s attorney asked Mark: “Q: Do you understand that with
you still in this child’s life at future dates you could attempt to modify
this court order with [Tina and Ray]?” Mark answered: “Yes.”
14Holley, 544 S.W.2d at 371-72.
15See In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11.
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Conclusion
Since the access order the trial court rendered is appropriate under
the circumstances for a child less than three-years-of-age, we overrule
Mark’s issues. The trial court’s final order is
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on June 21, 2022
Opinion Delivered July 14, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
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